<P0^  . ‘LftAAAVCA- 


COLLECTIVE  BARGAINING  BEFORE 
THE  SUPREME  COURT 


BY 

THOMAS  REED  POWELL 


REPRINTED  FROM  POLITICAL  SCIENCE  QUARTERLY 
Vol.  XXXIII,  No.  3,  September,  1918 


NEW  YORK 
PUBLISHED  BY  THE 
ACADEMY  OF  POLITICAL  SCIENCE 
1918 


COLLECTIVE  BARGAINING  BEFORE  THE 
SUPREME  COURT 


IN  three  important  cases  a majority  of  the  United  States  Su- 
preme Court  has  thwarted  efforts  of  labor  unions  to  in- 
crease their  numbers.  In  all  three  there  was  vigorous 
dissent.  All  three  were  opposed  to  the  judgment  of  the  court 
below.  The  first  two  found  statutes  wanting  in  the  require- 
ments of  due  process  of  law.  Adair  v.  United  States  1 annulled 
an  Act  of  Congress  which  prohibited  interstate  carriers  from 
discharging  an  employe  because  of  his  membership  in  a labor 
union.  Coppage  v.  Kansas 2 declared  invalid  a state  law  which 
forbade  any  employer  to  require  of  employes  or  of  persons 
seeking  employment  an  agreement  not  to  become  or  remain  a 
member  of  a labor  union.  The  third  decision  is  Hitchman 
Coal  and  Coke  Company  v.  Mitchell  et  al .,3  handed  down  last 
December.  It  deals  with  a situation  created  by  the  type  of 
agreement  which  Kansas  sought  unsuccessfully  to  forbid.  Of- 
ficers of  a labor  union  were  restrained  by  injunction  from  secur- 
ing secret  promises  to  join  the  union  from  employes  who  had 
agreed  to  relinquish  their  employment  in  case  they  became 
members. 

Each  of  these  decisions  was  rendered  in  the  name  of  freedom 
and  liberty.  But  since  each  dealt  with  conflicting  interests, 
each  necessarily  involved  interfering  with  liberty  as  well  as  pro- 
tecting it.  The  majority  judges  of  the  Supreme  Court  must 
have  thought  that  the  liberty  they  safeguarded  was  for  some 
reason  entitled  to  more  consideration  than  the  liberty  they  cur- 
tailed. And  the  minority  and  the  judges  below  must  have  held 
contrary  views.  The  importance  of  the  decisions  and  of  the 
court  which  rendered  them  may  make  it  profitable  to  review 
the  various  opinions  and  try  to  arrange  the  controlling  reasons 
for  the  divergent  views.  In  so  far  as  the  opinions  do  not  lend 

1 (1908)  208  U.  S.  161. 

* (1915)  236  U.  S.  1. 

8 (1917)  245  U.  S.  232. 


396 


COLLECTIVE  BARGAINING 


397 


pnV 


themselves  to  this  purpose,  an  endeavor  will  be  made  to  indi- 
cate the  fact.  It  not  infrequently  happens  that  a judicial 
opinion,  like  the  arguments  of  counsel,  starts  from  a selected 
premise  which  has  in  it  the  seeds  of  a desired  result,  and  neg- 
lects to  weigh  that  premise  in  even  scales  against  competing 
premises  which  are  equally  significant  but  which  bear  other 
fruit. 

Only  four  of  the  judges  sat  in  all  three  cases.  Of  these 
Chief  Justice  White  was  consistently  with  the  majority,  and  Mr. 
Justice  Holmes  with  the  minority.  Mr.  Justice  McKenna  was 
with  the  majority  in  the  Coppage  case  and  the  Hitchman  case, 
and  with  the  minority  in  the  Adair  case.  Mr.  Justice  Day  dis- 
sented in  the  Coppage  case  and  concurred  in  the  other  two. 
Justices  Pitney,  Van  Devanter  and  McReynolds  sat  in  the  Cop- 
page case  and  the  Hitchman  case  and  concurred  in  both.  With 
them  in  the  Coppage  case  was  Mr.  Justice  Lamar;  against 
them,  Mr.  Justice  Hughes.  Chief  Justice  Fuller  and  Justices 
Harlan,  Peckham  and  Brewer  completed  the  majority  in  the 
Adair  case;  and  Justices  Brandeis  and  Clarke,  the  minority  in 
the  Hitchman  case. 

I 

The  Adair  case  involved  no  dispute  as  to  the  facts,  as  the 
respondent  by  demurring  to  the  indictment  confessed  that  he 
had  discharged  an  employe  of  an  interstate  railroad  because  of 
his  membership  in  a labor  union.  The  sole  issue  before  the 
court  was  the  constitutionality  of  the  statute  forbidding  such 
discharge.  And  the  opinion  of  Mr.  Justice  Harlan  maintained 
its  unconstitutionality  by  asserting  it. 

Adair  was  an  agent  of  the  carrier.  It  was  his  right,  says  the 
learned  justice,  “ and  that  right  inhered  in  his  personal  liberty, 
and  was  also  a right  of  property,  to  serve  his  employer  as  best 
he  could,  so  long  as  he  did  nothing  that  was  reasonably  for- 
bidden by  law  as  injurious  to  the  public  interests.”  This  seems 
a prelude  to  a consideration  of  the  question  of  reasonableness. 
But  we  are  not  thus  favored.  Instead,  we  are  informed  again 
that  “ it  was  the  right  of  the  defendant  to  prescribe  the  terms 
upon  which  the  services  of  Coppage  [the  employe]  would  be 


398 


POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 


accepted,  and  it  was  the  right  of  Coppage  to  become  or  not, 
as  he  chose,  an  employe  of  the  railroad  company  upon  the 
terms  offered  him.” 

This  describes  the  legal  situation  before  the  passage  of  the 
statute.  The  parties  were  at  liberty  to  bargain  as  they  pleased 
about  the  affiliation  of  the  employe  with  a union.  But  what 
we  need  to  know  is  why  the  legal  situation  created  or  sanctioned 
by  the  common  law  cannot  be  changed  by  statute.  We  do  not 
gain  light  on  this  point  from  any  recital  of  the  rights  of  the 
parties  at  common  law,  however  oft  repeated.  Mr.  Justice 
Harlan  quotes  a statement  from  Cooley  that  “ it  is  a part  of 
every  man’s  civil  rights  that  he  be  left  at  liberty  to  refuse  busi- 
ness relations  with  any  person  whomsoever,  whether  the  refusal 
rests  upon  reason,  or  is  the  result  of  whim,  caprice,  prejudice 
or  malice.”  But  this  is  from  a treatise  on  torts,  and  is  evidently 
intended  to  mean  that  a man  is  not  liable  in  tort  for  refusing  to 
hire  another  or  to  work  for  another.  It  does  not  throw  light 
on  the  question  whether  a new  statutory  arrangement  is  reason- 
able enough  to  be  constitutional. 

The  succeeding  paragraph  in  the  opinion  takes  us  no  further 
in  our  quest.  It  cites  Lochner  v.  New  York,1  and  says  that  all 
the  court  were  agreed  “ as  to  the  general  proposition  that  there 
is  a liberty  of  contract  that  cannot  be  unreasonably  interfered 
with  by  legislation.”  Next  follows  the  concession  that  the 
“ right  of  liberty  ” is  subject  “ to  such  reasonable  restraints  as 
the  common  good  or  general  welfare  may  require.”  But  this 
is  succeeded,  not  by  a discussion  of  the  question  of  reasonable- 
ness, but  by  a neglect  of  it.  Note  the  significant  silence  on  the 
controlling  issue : 

...  it  is  not  within  the  functions  of  government — at  least  in  the  ab- 
sence of  contract  between  the  parties — to  compel  any  person,  in  the 
course  of  his  business,  and  against  his  will,  to  accept  or  retain  the 
personal  services  of  another. 

After  reiterating  again  the  common-law  rights  of  the  employer 
and  of  the  employe,  the  opinion  continues : 


( I9°5)  198  U.  S.  45. 


Ne.  3] 


COLLECTIVE  BARGAINING 


399 


In  all  such  particulars  the  employer  and  the  employe  have  equality  of 
right,  and  any  legislation  that  disturbs  that  equality  is  an  arbitrary  in- 
terference with  the  liberty  of  contract  which  no  government  can  legally 
justify  in  a free  land. 

There  is  more  to  the  same  effect.  Summing  it  up,  the  statute 
is  unconstitutional  because  it  is  unconstitutional. 

It  is  not  surprising  that  such  an  avoidance  of  the  question  of 
reasonableness  prompts  Mr.  Justice  McKenna  to  open  his  dis- 
sent by  saying : 

The  opinion  of  the  court  proceeds  upon  somewhat  narrow  lines  and 
either  omits  or  does  not  give  adequate  prominence  to  the  considera- 
tions which,  I think,  are  determinative  of  the  questions  in  the  case. 

And  later  he  suggests  that  an  inquiry  be  made  as  to  the  pur- 
pose of  the  legislation,  “ without  beating  about  in  the  abstract.” 

This  purpose  Mr.  Justice  McKenna  finds  in  the  other  pro- 
visions of  the  statute  setting  forth  a plan  of  arbitration  to  pre- 
vent the  strikes  which  are  apt  to  arise  from  disputes  between 
employers  and  employed.  The  unions  among  railroad  em- 
ployes, he  says,  exist,  and  are  a fact  to  be  reckoned  with. 
They  create  a unity  among  employes  which  may  be  an  obstacle 
or  an  aid  to  arbitration.  Congress  sought  to  make  this  unity 
an  aid  in  the  settlement  of  labor  disputes.  The  requirement  is 
therefore  in  the  public  interest.  It  is  imposed  only  on  those 
engaged  in  a public-service  enterprise,  who  are  subject  to  con- 
trol in  the  interest  of  the  public.  With  the  rights  of  those 
engaged  in  private  business  “ we  are  not  concerned.” 

Mr.  Justice  McKenna  therefore  finds  the  restriction  on  the 
liberty  of  the  carriers  a reasonable  one,  because,  accepting  con- 
ditions as  they  are,  it  will  tend  to  prevent  strikes.  Mr.  Justice 
Harlan  dismisses  this  alleged  justification  in  a somewhat  round- 
about way.  He  enters  upon  the  question  in  order  to  discover 
whether  the  act  is  a regulation  of  interstate  commerce.  This 
is  in  response  to  some  argument  which  he  calls  a suggestion 
that  the  act  “ can  be  referred  to  the  power  of  Congress  to 
regulate  interstate  commerce,  without  regard  to  any  question 
of  personal  liberty  or  right  of  property  under  the  5th  Amend- 


400 


POLITICAL  SCIENCE  QUARTERLY  [Voi,.  XXXIII 


ment.”  If  the  argument  was  put  in  this  way,  it  confused  two 
distinct  questions.  The  opinion  recognizes  this  when  it  says 
later  that  the  power  over  commerce  “ cannot  be  exerted  in 
violation  of  any  fundamental  right  secured  by  other  provisions 
of  the  Constitution.”  And  if  the  act  is  not  a regulation  of 
interstate  commerce,  it  is  unconstitutional,  even  if  it  does  not 
also  violate  the  Fifth  Amendment.  So  that  the  majority,  by 
holding  that  the  objects  of  the  statute  are  not  within  the  pur- 
view of  the  commerce  power,  avoids  explicit  analysis  of  the 
reasons  adduced  by  the  minority  for  the  reasonableness  of  its 
interference  with  liberty. 

Mr.  Justice  Harlan  prefaces  his  consideration  of  the  com- 
merce question  by  saying: 


Manifestly,  any  rule  prescribed  for  the  conduct  of  interstate  com- 
merce, in  order  to  be  within  the  competency  of  Congress  under  its 
power  to  regulate  commerce  among  the  states,  must  have  some  real  or 
substantial  relation  to  or  connection  with  the  commerce  regulated. 

Then  follows  the  rhetorical  question : 

But  what  possible  legal  or  logical  connection  is  there  between  an  em- 
ploye’s membership  in  a labor  organization,  and  the  carrying  on  of 
interstate  commerce? 

In  first  analysis,  of  course,  the  connection  is  factual.  Whether 
it  is  also  logical  depends  upon  the  logician ; whether  it  is  legal, 
upon  the  judge.  Mr.  Justice  Harlan  finds  no  link  between 
labor  unions  and  commerce,  because  “ it  is  the  employe  as  a 
man,  and  not  as  a member  of  a labor  organization,  who  labors 
in  the  service  of  an  interstate  carrier.”  “ Surely,”  he  says, 
“ those  associations,  as  labor  organizations,  have  nothing  to  do 
with  interstate  commerce.”  1 The  argument  to  the  contrary  he 

1 It  is  interesting  to  compare  a statement  of  Mr.  Justice  Pitney  on  behalf  of  the 
majority  in  the  Coppage  case,  in  which  he  says  that  “it  cannot  be  judicially  de- 
clared that  membership  in  such  an  organization  has  no  relation  to  a member’s  duty 
to  his  employer”  (236  U.  S.  1,  19).  In  the  Coppage  case  it  was  the  argument  in 
favor  of  the  statute  which  urged  that  “membership  in  a labor  organization  is  the 
‘personal  and  private  affair’  of  the  employe.” 

In  sustaining  the  Adamson  Law  in  Wilson  v.  New  (1917)  243  U.  S.  332,  a 
majority  of  the  Supreme  Court  in  effect  discountenanced  the  application  of  the  com- 
merce clause  adopted  by  the  majority  in  the  Adair  case. 


No.  3] 


COLLECTIVE  BARGAINING 


401 


regards  as  based  upon  the  assumption  that  “ members  of  labor 
organizations  would,  by  illegal  or  violent  measures,  interrupt 
or  impair  the  freedom  of  commerce  among  the  states.”  And 
of  such  assumptions  he  says : 

We  will  not  indulge  in  any  such  conjectures,  nor  make  them,  in  whole 
or  in  part,  the  basis  of  our  decision.  We  could  not  do  so  consistently 
with  the  respect  due  to  a co-ordinate  department  of  the  government. 

Mr.  Justice  McKenna’s  respect  for  Congress  takes  a different 
form.  He  sees  that  the  power  of  labor  unions  “ may  be  ef- 
fectively exercised  without  violence  or  illegality,”  and  he  quotes 
from  a report  of  the  Senate  Committee  to  show  that  the  legis- 
lation was  based,  not  on  conjecture,  but  on  experience.  Of  the 
argument  of  the  majority  he  says : 

Neither  the  supposition  nor  the  disrespect  is  necessary,  and,  it  may  be 
urged,  they  are  no  more  invidious  than  to  impute  to  Congress  a care- 
less or  deliberate  or  purposeless  violation  of  the  constitutional  rights  of 
the  carriers. 

Plainly  Mr.  Justice  Harlan  avoids  due  consideration  of  the 
justifications  for  the  restraint  imposed  on  the  carriers.  But 
Mr.  Justice  McKenna  also  fails  to  give  due  weight  to  the  burden 
of  that  restraint  upon  them.  The  act,  he  says,  restrains  noth- 
ing “ which  is  of  any  material  interest  to  the  carrier.”  He  as- 
sumes that  the  discharge  of  an  employe  because  of  membership 
in  a union  is  “ the  exercise  of  mere  whim  or  caprice,”  or  at  any 
rate  that  it  may  be,  and  that  “ this  is  the  liberty  which  is  at- 
tempted to  be  vindicated  as  the  constitutional  right  of  the 
carrier.”  And  on  this  assumption  he  comments  eloquently : 
“ Liberty  is  an  attractive  theme,  but  the  liberty  which  is  exer- 
cised in  sheer  antipathy  does  not  plead  strongly  for  recogni- 
tion.” 

Mr.  Justice  Holmes  looks  deeper.  In  a separate  dissent  he 
says  that  “ the  section  is,  in  substance,  a very  limited  inter- 
ference with  the  freedom  of  contract,  no  more.  It  does  not 
require  the  carriers  to  employ  anyone.  It  does  not  forbid  them 
to  refuse  to  employ  anyone,  for  any  reason  they  deem  good.” 
And  he  puts  his  finger  on  the  artificiality  of  the  individualistic 


402 


POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 


approach  to  the  problem,  by  adding : . . even  where  the  notion 

of  a choice  of  persons  is  a fiction  and  wholesale  employment  is 
necessary  upon  general  principles  that  it  might  be  proper  to 
control.”  The  statute,  he  finds,  “ simply  prohibits  the  more 
powerful  party  to  exact  certain  undertakings,  or  to  threaten 
dismissal  or  unjustly  discriminate  on  certain  grounds  against 
those  already  employed.”  If  there  is  believed  to  be  an  im- 
portant ground  for  the  restraint,  “ the  Constitution  does  not 
forbid  it,  whether  this  court  agrees  or  disagrees  with  the  policy 
pursued.”  Mr.  Justice  Holmes  does  not  confine  his  sanction  to 
the  object  of  preventing  strikes.  Though  he  thinks  that  labor- 
ing men  are  apt  to  attribute  to  unions  advantages  “ that  really 
are  due  to  economic  conditions  of  a wider  and  deeper  kind,” 
he  says  that  he  “could,  not  pronounce  it  unwarranted  if  Con- 
gress should  decide  that  to  foster  a strong  union  was  for  the 
best  interest,  not  only  of  the  men,  but  of  the  railroads  and  the 
country  at  large.”  And  his  conclusion,  which  he  puts  at  the 
beginning  of  his  opinion,  is  stated  as  follows : “ I also  think 
that  the  statute  is  constitutional,  and,  but  for  the  decision  of  my 
brethren,  I should  have  felt  pretty  clear  about  it.” 

So  much  for  the  arguments  of  the  judges.  Mr.  Justice 
Holmes  sees  the  issue  as  one  of  policy  which  it  is  for  Congress 
to  decide.  The  majority  find  some  eternal  right  of  the  carrier 
to  be  left  alone,  against  which  Congress  beats  in  vain.  They 
build  this  right  on  the  common-law  right  of  the  carrier  to  be 
immune  from  damages  if  it  dismissed  an  employe  because  he 
was  a member  of  a union.  But  this  common-law  right  was  a 
judicial  creation  with  respect  to  an  issue  between  man  and  man. 
The  issue  in  the  Adair  case  is  one  between  man  and  govern- 
ment. The  new  right  of  the  carrier  discovered  by  the  Adair 
case  is  wholly  different  from  that  which  it  had  at  common  law. 
An  immunity  against  an  individual  has  been  enlarged  into  an 
immunity  against  the  government.  Yet  the  court  seems  to 
think  that  it  is  merely  protecting  an  old  right,  and  not  creating 
a new  one.  Thus  it  avoids  giving  any  substantial  reason  for  its 
decision. 

The  majority  recognizes  that  the  issue  before  the  court  is 
one  of  reasonableness.  The  merit  of  its  opinion  depends, 


No.  3] 


COLLECTIVE  BARGAINING 


403 


therefore,  upon  its  discussion  of  that  issue.  Legislatures  are 
fortunate  in  not  being  called  upon  to  give  reasons  for  the  law 
they  make.  Courts  are  under  a duty  to  give  weighty  and  spe- 
cific reasons  before  they  unmake  the  law  made  by  the  legisla- 
ture. They  may  not  inappropriately  be  held  subject  to  the 
canon  that  the  vigorous  assertion  of  a conclusion  is  not  the 
giving  of  a reason  for  it.  Judged  by  this  canon,  the  majority 
opinion  in  the  Adair  case  is  sadly  wanting.  Its  declaration 
that  it  is  not  within  the  functions  of  government  to  compel  a 
person  against  his  will  to  retain  the  services  of  another  is  be- 
side the  point,  because  Congress  did  not  compel  the  carrier  to 
retain  the  services  of  any  of  its  employes.  There  is  a wide 
difference  between  prohibiting  discharge  for  a single,  specified 
reason,  and  prohibiting  discharge  altogether.  The  court  can- 
not convince  us  of  the  unreasonableness  of  what  Congress  did, 
by  telling  us  that  it  is  not  within  the  functions  of  government 
to  do  something  much  more  drastic.  It  does  not  enlighten  us 
on  the  question  of  reasonableness  by  the  rhetorical  fiat  that 
“ the  employer  and  the  employe  have  equality  of  right,  and 
any  legislation  that  disturbs  that  equality  is  an  arbitrary  inter- 
ference with  liberty  of  contract  which  no  government  can 
justify  in  a free  land.”  Yet  it  is  on  this  fiat  that  the  decision 
rests,  and  not  on  anything  that  can  be  dignified  with  the  title 
of  a reason. 


II 

This  question  of  the  disturbance  of  the  equality  between  em- 
ployer and  employed  receives  further  discussion  in  the  opinions 
in  the  Coppage  case.  The  majority  in  that  case  insist  that  a 
statute  which  forbids  an  employer  to  require  of  a laborer,  as  a 
condition  of  obtaining  or  remaining  in  employment,  an  agree- 
ment not  to  become  or  to  remain  a member  of  a labor  union, 
is  as  vicious  as  one  which  forbids  dismissal  because  of  member- 
ship in  a union.  If  the  employer  must  remain  free  to  dis- 
charge an  employe  for  any  reason  that  seems  to  him  good,  he 
must  be  permitted  to  announce  in  advance  what  reasons  he 
will  deem  sufficient  for  discharge.  “ Granted  the  equal  free- 
dom of  both  parties  to  the  contract  of  employment,  has  not 


404 


POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 


each  party  the  right  to  stipulate  upon  what  terms  only  he  will 
consent  to  the  inception,  or  to  the  continuance,  of  that  rela- 
tionship? ” 

Mr.  Justice  Holmes,  in  a brief  dissent,  did  not  seek  to  dis- 
tinguish the  problem  before  the  court  from  that  involved  in  the 
Adair  case.  He  thought  that  the  Adair  case  should  be  over- 
ruled. But  Mr.  Justice  Day,  who  concurred  in  the  Adair  case, 
distinguishes  it  from  the  case  in  hand,  in  which  he  dissents. 
His  reasons  are  as  follows: 

There  is  a real,  and  not  a fanciful,  distinction  between  the  exercise 
of  the  right  to  discharge  at  will  and  the  imposition  of  a requirement 
that  the  employe , as  a condition  of  employment,  shall  make  a par- 
ticular agreement  to  forego  a legal  right.  The  agreement  may  be,  or 
may  be  declared  to  be,  against  public  policy,  although  the  right  of 
discharge  remains.  When  a man  is  discharged,  the  employer  exer- 
cises his  right  to  declare  such  action  necessary  because  of  the  exigencies 
of  his  business,  or  as  the  result  of  his  judgment  for  other  reasons  suffi- 
cient to  himself.  When  he  makes  a stipulation  of  the  character  here 
involved  essential  to  future  employment,  he  is  not  exercising  a right  to 
discharge,  and  may  not  wish  to  discharge  the  employe  when,  at  a 
subsequent  time,  the  prohibited  act  is  done.  What  is  in  fact  accom- 
plished, is  that  the  one  engaging  to  work,  who  may  wish  to  preserve 
an  independent  right  of  action,  as  a condition  of  employment,  is 
coerced  to  the  signing  of  such  an  agreement  against  his  will,  perhaps 
impelled  by  the  necessities  of  his  situation. 

In  illustration  of  his  point,  Mr.  Justice  Day  refers  to  such  pos- 
sible stipulations  as  that  a person  seeking  employment  shall 
agree  not  to  resort  to  the  courts  for  redress  in  case  of  disagree- 
ment with  his  employer,  or  not  to  become  a member  of  the 
national  guard,  or  not  to  affiliate  with  a particular  political  party. 
The  requirement  of  such  agreements  in  advance,  he  insists,  is 
the  exercise  of  a wholly  different  liberty  from  those  of  not  em- 
ploying or  of  discharging  after  employing. 

There  is  a difference,  of  course.  But  whether  the  difference 
is  sufficient  to  entitle  one  who  dissents  in  the  Coppage  case  to 
concur  in  the  Adair  case  is  more  difficult  to  determine.  Mr. 
Justice  Day  does  not  establish  the  importance  of  his  distinction 
by  saying  that  the  Kansas  statute  “ reaches  not  only  the  em- 


No.  3] 


COLLECTIVE  BARGAINING 


405 


ployed,  but  as  well,  one  seeking  employment,”  who  “ by  signing 
such  agreements  ” is  “ deprived  of  the  right  of  free  choice  as 
to  his  future  conduct.”  So  long  as  the  employe  remains 
legally  free  to  quit  his  employment  at  any  time,  he  may  always 
choose  between  joining  a union  or  keeping  his  job.  So  far  as 
we  can  reason  about  it,  the  agreement  would  seem  to  have  no 
wider  direct  results  as  between  employer  and  employe  than 
would  ensue  from  the  announcement  by  the  employer  that  he 
ran  and  would  continue  to  run  a closed  non-union  shop.  But 
psychological  considerations  may  enter  in  to  make  a difference. 
Evidently  the  employers  think  that  the  securing  of  the  indi- 
vidual agreements  at  the  time  of  hiring  is  an  aid  in  their  en- 
deavor to  avert  the  pressure  of  collective  bargaining  on  the  part 
of  the  men.  And,  as  will  appear  later  from  the  Hitchman  case, 
the  existence  of  a contract  between  employer  and  employed 
gives  a weapon  to  the  former  against  third  parties  who  seek  to 
unite  employes  in  a demand  that  they  be  retained  as  union  men. 
The  majority,  therefore,  do  not  find  in  the  Adair  case  a com- 
plete precedent  for  the  Coppage  case.  Nevertheless  the  major 
issue  in  both  cases  is  whether  the  legislature  may  aid  laborers 
in  their  efforts  to  secure  collective  bargaining. 

This  evidently  is  the  way  Mr.  Justice  Holmes  views  it.  In  a 
dissent  which  takes  only  a paragraph,  he  says : 

In  present  conditions  a workman  not  unnaturally  may  believe  that 
only  by  belonging  to  a union  can  he  secure  a contract  that  shall  be  fair 
to  him.  If  that  belief,  whether  right  or  wrong,  may  be  held  by  a 
reasonable  man,  it  seems  to  me  that  it  may  be  enforced  by  law  in 
order  to  establish  the  equality  of  position  between  the  parties  in  which 
liberty  of  contract  begins.  Whether  in  the  long  run  it  is  wise  for  the 
workingmen  to  enact  legislation  of  this  sort  is  not  my  concern,  but  I 
am  strongly  of  opinion  that  there  is  nothing  in  the  Constitution  of  the 
United  States  to  prevent  it,  ...  . 

Thus  Mr.  Justice  Holmes  regards  the  statute  as  a promoter  of  ■ 
liberty  and  equality.  The  minority  regard  it  as  an  interference 
with  both.  This  is  not  to  say  that  they  disagree  as  to  the 
results  the  law  sought  to  produce.  Their  difference  relates  to 
the  characterization  of  those  results.  It  goes  to  the  essence  of 
what  each  means  by  liberty  and  equality. 


406  POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 

To  the  minority,  liberty  and  equality  mean  something  actual 
and  concrete.  Mr.  Justice  Day  says  of  the  Kansas  statute:  “ I 
think  that  the  Act  now  under  consideration,  and  kindred  ones, 
are  intended  to  promote  the  same  liberty  of  action  for  the  em- 
ploye, as  the  employer  confessedly  enjoys.”  It  is  a step  towards 
making  them  equal  in  bargaining  power.  It  prohibits  “ coer- 
cive attempts”  on  the  part  of  employers  to  deprive  employes 
“ of  the  free  right  of  exercising  privileges  which  are  theirs 
within  the  law.”  To  the  argument  of  the  majority  that  there  is 
no  element  of  coercion  in  offering  an  employe  a choice  between 
his  union  and  his  job,  Mr.  Justice  Day  says  that  this  neglects 
the  facts  as  to  the  relative  positions  of  employer  and  employed. 
The  choice  legally  open  to  the  employe  is  not  actually  open  to 
him.  He  cannot  enjoy  his  legal  right  to  be  a member  of  a 
union,  if  he  is  hampered  thereby  in  working  for  his  living  in 
the  occupation  for  which  he  is  best  fitted. 

To  this  the  majority  reply  that  “ constitutional  freedom  of 
contract  does  not  mean  that  a party  is  to  be  as  free  after  mak- 
ing a contract  as  before.”  By  agreeing  to  work,  the  employe 
yields  the  enjoyment  of  his  legal  right  to  use  his  time  as  he 
pleases.  “ Freedom  of  contract,  from  the  very  nature  of  the 
thing,  can  be  enjoyed  only  by  being  exercised ; and  each  par- 
ticular exercise  of  it  involves  making  an  engagement  which,  if 
fulfilled,  prevents  for  the  time  any  inconsistent  course  of  con- 
duct.” While  an  individual  has  a legal  right  to  join  a union, 
“ he  has  no  inherent  right  to  do  this  and  still  remain  in  the 
employ  of  one  who  is  unwilling  to  employ  a union  man.” 

This  of  course  is  but  to  reiterate  the  common-law  situation. 
The  statute  meant  to  give  the  employe  a freedom  he  did  not 
have  at  common  law.1  The  minority  says  that  his  ancient 
legal  liberty  was  not  an  actual  liberty,  and  that  it  is  within  the 
power  of  the  state  to  add  to  his  actual  liberty.  In  so  doing  it 
cuts  down  the  legal  liberty  of  the  employer,  but  it  leaves  him 

1 The  statute  may  be  viewed  as  a declaration  that  the  legal  right  to  be  a member 
of  a union  shall  not  be  subject  to  sale.  Common  law  and  equity  are  familiar  with 
restrictive  covenants  on  one’s  future  freedom  of  action  which  are  denied  jural  recog- 
nition. Restraints  of  one’s  future  conduct  connected  with  earning  a livelihood  have 
always  been  outlawed  when  regarded  as  unreasonable. 


COLLECTIVE  BARGAINING 


No.  3] 


407 


with  an  actual  liberty  which,  by  reason  of  his  economic  super- 
iority, is  equal  to  the  actual  liberty  of  the  employe. 

This  discussion  of  liberty  is  of  value  only  as  it  leads  to  the 
issue  of  equality.  Of  course  no  one  has  actual  liberty  to  use 
all  his  legal  liberty.  He  must  pick  and  choose.  Everyone  is 
subject  to  some  degree  of  economic  coercion.  Mr.  Justice 
Day’s  statement  that  the  Kansas  statute  “ has  for  its  avowed 
purpose  the  protection  of  the  exercise  of  a legal  right  ” to  join 
a union  is  true  enough  so  far  as  it  goes.  But  it  has  the  same 
incompleteness  which  marks  the  argument  of  the  majority  that 
the  statute  interferes  with  the  legal  right  of  employers  to  pre- 
scribe the  conditions  on  which  they  will  make  contracts.  The 
protection  of  the  common-law  right  of  the  one  is  gained  only 
by  limiting  the  common-law  right  of  the  other.  All  argument 
is  vain  which  confines  itself  to  the  elaboration  of  the  effect  of  the 
statute  on  one  of  these  rights,  disregarding  its  effect  on  the  other. 

The  common  law  left  the  employe  free  to  join  a union.  It 
left  the  employer  free  to  decline  to  hire  members  of  a union. 
In  some  upper  conceptual  chamber  these  two  common-law 
liberties  may  dwell  together  in  amity.  In  actual  life  they  con- 
flict. The  conflict  had  to  be  resolved  in  the  course  of  a struggle 
in  which  the  public  interests  suffered.  If  the  state  is  to  step  in 
to  aid  the  public  interest  by  reducing  the  friction  between  the 
parties,  it  must  do  something  more  than  to  sanction  what 
already  exists.  The  minority  is  correct  in  its  position  that  the 
state  has  protected  the  exercise  of  the  legal  liberty  of  the  em- 
ploye. The  majority  is  correct  in  its  assertion  that  the  state 
has  interfered  with  a previous  legal  liberty  of  employers.  The 
issue  is  whether  the  former  is  a justification  for  the  latter. 

The  majority,  in  seeking  for  possible  justifications,  find  none. 
Other  interferences  with  liberty  which  have  been  judicially  sanc- 
tioned have  been  “ fairly  deemed  necessary  to  secure  some 
object  directly  affecting  the  public  welfare.”  But  of  the  statute 
in  question,  putting  aside  the  question  of  coercion,  Mr.  Justice 
Pitney  says : 


. . . there  is  no  object  or  purpose , expressed  or  implied , that  is  claimed 
to  have  reference  to  health,  safety,  morals,  or  public  welfare,  beyond 


408  POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 

the  supposed  desirability  of  leveling  inequalities  of  fortune  by  depriving 
one  who  has  property  of  some  part  of  what  is  characterized  as  his 
“ financial  independence.”  In  short,  an  interference  with  the  normal 
exercise  of  personal  liberty  and  property  rights  is  the  primary  object  of 
the  statute,  and  not  an  incident  to  the  advancement  of  the  general 
welfare . 

This  is  to  say  that  the  object  of  the  statute  is  to  promote 
equality  of  actual  opportunity,  solely  for  the  sake  of  that 
equality — a result  which  could  not  promote  the  general  welfare. 
Moreover  the  Constitution  is  regarded  as  having  been  designed 
to  prevent  the  legislature  from  promoting  equality  of  oppor- 
tunity. Inequality  is  the  necessary  result  of  the  institution  of 
private  property.  “ Wherever  the  right  of  private  property 
exists  there  must  and  will  be  inequalities  of  fortune.”  It  is 
4t  impossible  to  uphold  freedom  of  contract  and  the  right  of 
private  property  without  at  the  same  time  recognizing  as  legiti- 
mate those  inequalities  of  fortune  that  are  the  necessary  result 
of  the  exercise  of  those  rights.”  Since  a state  may  not  cut 
down  the  rights  of  private  property  directly,  it  “ may  not  do  so 
indirectly,  as  by  declaring  in  effect  that  the  public  good  requires 
the  removal  of  those  inequalities  that  are  but  the  normal  and 
inevitable  result  of  their  exercise,  and  then  invoking  the  police 
power  in  order  to  remove  the  inequalities,  without  other  object 
in  view.” 

Constitutional  liberty  of  contract,  therefore,  is  not  “ freedom 
of  action.”  It  is  freedom  from  legislative  interference  with 
action.  This  is  freedom  for  employer  and  employe  alike,  even 
though  for  the  employe  it  is  but  the  wraith  of  genuine  freedom. 
Equality  between  employer  and  employe  is  not  approximate 
evenness  of  bargaining  position.  It  exists  only  when  both  are 
equally  let  alone  by  the  legislature.  The  state  may  not,  as  Mr. 
Justice  Holmes  contends,  “ establish  the  equality  of  position  in 
which  liberty  of  contract  begins.”  It  must  not  interfere  with 
that  inequality  of  position  which  enables  the  one  with  superioi 
position  to  drive  a hard  bargain.  The  owner  of  property  must 
be  guaranteed  an  advantage  in  all  his  dealings  with  those  who 
have  less  than  he.  In  the  words  of  Mr.  Justice  Pitney: 


No.  3] 


COLLECTIVE  BARGAINING 


409 


Indeed,  a little  reflection  will  show  that  wherever  the  right  of  private 
property  and  the  right  of  free  contract  coexist,  each  party  when  con- 
tracting is  inevitably  more  or  less  influenced  by  the  question  whether 
he  has  much  property,  or  little  or  none;  for  the  contract  is  made  to 
the  very  end  that  each  may  gain  something  he  needs  or  desires  more 
urgently  than  that  which  he  proposes  to  give  in  exchange. 

To  him  that  hath  shall  be  given  protection,  not  only  of  that 
which  he  hath,  but  of  every  leverage  which  his  possessions  give 
him  in  acquiring  more.  To  him  that  hath  not  shall  be  given 
the  solace  that  he  is  free  and  unrestrained  by  law  as  to  the 
bargains  he  shall  make.  He  may  be  influenced  as  much  as  he 
likes  by  the  fact  that  he  has  little  property  or  none.  He  lives 
in  a land  of  freedom  and  equality. 

This  is  where  we  should  arrive  by  uniting  an  absolute  con- 
ception of  liberty  of  contract  with  an  absolute  conception  of 
property,  and  then  regarding  the  marriage  as  indissoluble.  Of 
course  no  one  means  to  carry  the  sanctity  of  inequality  so  far. 
Otherwise  all  anti-trust  laws  would  be  unconstitutional.  For 
they  deprive  those  who  have  superior  position  from  using  that 
position  as  a leverage  to  improve  it  still  further.  They  promote 
actual  equality  by  restraining  the  strong  for  the  sake  of  the 
weak.  It  is  quite  as  nearly  correct  to  say  they  have  no  other 
object  in  view,  as  it  is  to  say  that  the  Kansas  statute  has  no 
other  object  in  view.  Whether  in  either  case  “ an  interference 
with  the  normal  exercise  of  personal  liberty  and  property 
rights”  is  “ the  primary  object  of  the  statute,”  or  is  “ an  inci- 
dent to  the  advancement  of  the  general  welfare  ” depends  upon 
a judgment  whether  the  primary  results  of  the  interference  con- 
duce to  the  general  welfare.  It  is  equally  possible  arbitrarily 
to  stigmatize  either  interference  as  a primary  object  and  not  a 
means  to  something  else.  Each  necessarily  results  in  some- 
thing else.  Each  involves  “ the  supposed  desirability  ” of 
“ leveling  inequalities  of  fortune,”  in  the  sense  that  each  seeks 
to  enhance  the  purchasing  power  of  a large  group  of  the  public 
to  the  consequent  diminution  of  the  purchasing  power  of 
another  group.  Both  deal  with  the  distribution  of  what  is  to 
be  created  in  the  future.  Neither  involves  re-division  of  com- 
modities now  possessed.  Mr.  Justice  Day  draws  the  parallel  as 
follows : 


410  POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 

Wherein  is  the  right  of  the  employer  to  insert  this  stipulation  in  the 
agreement  any  more  sacred  than  his  right  to  keep  up  prices?  He  may 
think  it  quite  as  essential  to  his  “ financial  independence,”  and  so  in 
truth  it  may  be  if  he  alone  is  to  be  considered.  But  it  is  too  late  to 
deny  that  the  legislative  power  reaches  such  a case.  It  would  be  diffi- 
cult to  select  any  subject  more  intimately  related  to  good  order  and 
the  security  of  the  community  than  that  under  consideration — whether 
one  takes  the  view  that  labor  organizations  are  advantageous  or  the 
reverse.  It  is  certainly  as  much  a matter  for  legislative  consideration 
and  action  as  contracts  in  restraint  of  trade. 

Good  order  and  the  security  of  the  community — these  are  the 
justifications  which  Mr.  Justice  Day  and  Mr.  Justice  Hughes 
find  for  the  statute.  This  is  to  be  attained  by  preventing  what 
is  in  fact  coercion,  though  it  be  a kind  of  coercion  not  forbidden 
by  the  common  law.  It  is  to  be  gained  by  substituting  an  actual 
equality  for  an  artificial  equality,  or,  as  Mr.  Justice  Holmes  puts 
it,  by  establishing  the  equality  of  position  between  the  parties 
in  which  liberty  of  contract  begins.  “ Good  order  and  the 
security  of  the  community  ” are  certainly  worthy  objects  of  leg- 
islative endeavor.  But  they  are  also  vague  phrases  to  conjure 
with.  They  are  slogans  rather  than  reasons.  They  help  no 
more  in  debate  than  does  the  phrase  “ general  welfare.”  Both 
the  majority  and  the  minority  in  the  Coppage  case  agree  that 
if  the  statute  under  consideration  promotes  the  general  welfare, 
it  is  constitutional.  The  majority  see  that  assistance  to  collec- 
tive bargaining  has  the  evil  of  leveling  inequality,  and  they  see 
nothing  more.  The  minority  hold  inequality  less  precious. 
And  so  we  are  left  with  only  the  disagreement  as  to  what  con- 
stitutes the  general  welfare  and  what  is  a legitimate  promotion 
of  that  welfare. 

Those  who  are  disheartened  at  finding  that  all  the  competing 
reasoning,  or  arguing,  leads  but  to  a blind  alley  may  find  sym- 
pathy, if  not  solace,  in  a statement  made  by  Mr.  Justice  Holmes 
when  chief  justice  of  Massachusetts.  In  his  dissenting  opinion 
in  Vegalahn  v.  Guntner,1  which  he  incorporates  by  reference 
in  his  dissent  in  the  Coppage  case,  he  says : 


1 ( 1896)  167  Mass.  92. 


No.  3] 


COLLECTIVE  BARGAINING 


411 

It  is  on  the  question  of  what  shall  amount  to  a justification,  and  more 
especially  on  the  nature  of  the  considerations  which  really  determine 
or  ought  to  determine  the  answer  to  that  question,  that  judicial  reason- 
ing seems  to  me  often  to  be  inadequate.  The  true  grounds  of  decision 
are  considerations  of  policy  and  of  social  advantage,  and  it  is  vain  to 
suppose  that  solutions  can  be  attained  merely  by  logic  and  general 
propositions  of  law  which  nobody  disputes.  Propositions  as  to  public 
policy  rarely  are  unanimously  accepted,  and  still  more  rarely,  if  ever, 
are  capable  of  unanswerable  proof.  They  require  a special  training  to 
enable  any  one  even  to  form  an  intelligent  opinion  about  them.1 

If  the  opinions  in  the  Coppage  case  do  not  deal  satisfactorily 
with  the  determining  issue,  they  are  not  alone  in  their  deficien- 

1 In  the  opinion  from  which  this  is  taken  Chief  Justice  Holmes  contended  that 
one  group  of  laborers  were  justified  in  promoting  their  own  advantage  by  seeking  to 
dissuade  another  group  from  continuing  in  the  service  of  an  employer  at  the  existing 
scale  of  wages.  In  Plant  v.  Woods,  (1900)  176  Mass.  492,  to  which  Mr.  Justice 
Holmes  also  refers  in  his  dissent  in  the  Coppage  case,  he  contended  that  members 
of  one  labor  union  were  justified  in  seeking  to  compel  members  of  another  union  to 
desert  it  and  join  with  them,  and  as  a means  to  this  end  to  threaten  strikes  and  boy- 
cotts. His  approach  to  the  problems  may  be  indicated  by  two  quotations.  In  the 
Guntner  case,  he  says:  “ I have  seen  the  suggestion  made  that  the  conflict  between 
employers  and  employed  was  not  competition.  But  I venture  to  assume  that  none 
of  my  brethren  would  rely  on  that  suggestion.  If  the  policy  on  which  our  law  is 
founded  is  too  narrowly  expressed  in  the  term  ‘ free  competition,’  we  may  substitute 
‘ free  struggle  for  life.’  Certainly  the  policy  is  not  limited  to  struggles  between  per- 
sons of  the  same  class,  competing  for  the  same  end.  It  applies  to  all  conflicts  of 
temporal  interests.”  And  he  closes  his  dissent  in  Plant  v.  Woods  as  follows:  “ Al- 
though this  is  not  the  place  for  extended  economic  discussion,  and  although  the  law 
may  not  always  reach  ultimate  economic  conceptions,  I think  it  well  to  add  that  I 
cherish  no  illusions  as  to  the  meaning  and  effect  of  strikes.  While  I think  the  strike 
a lawful  instrument  in  the  universal  struggle  of  life,  I think  it  pure  phantasy  to  sup- 
pose that  there  is  a body  of  capital  of  which  labor  as  a whole  secures  a larger  share 
by  that  means.  The  annual  product,  subject  to  an  infinitesimal  deduction  for  the 
luxuries  of  the  few,  is  directed  to  consumption  by  the  multitude,  and  is  consumed 
by  the  multitude,  always.  Organization  and  strikes  may  get  a larger  share  for  the 
members  of  an  organization,  but,  if  they  do,  they  get  it  at  the  expense  of  the  less 
organized  and  less  powerful  portion  of  the  laboring  mass.  They  do  not  create 
something  out  of  nothing.  It  is  only  by  divesting  our  minds  of  questions  of  owner- 
ship and  other  machinery  of  distribution,  and  by  looking  solely  at  the  question  of 
consumption — asking  ourselves  what  is  the  annual  product,  who  consumes  it,  and 
what  changes  would  or  could  we  make — that  we  can  keep  in  the  world  of  realities. 
But,  subject  to  the  qualifications  which  I have  expressed,  I think  it  lawful  for  a body 
of  workmen  to  try  by  combination  to  get  more  than  they  are  now  getting,  although 
they  do  it  at  the  expense  of  their  fellows,  and  to  that  end  to  strengthen  their  union 
by  the  boycott  and  the  strike.” 


412 


POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 


cies.  Like  many  other  judicial  opinions  they  use  methods  un- 
suited to  the  task  in  hand.  But  though  they  give  us  little  or 
no  guidance  in  forming  an  intelligent  judgment  on  the  merits 
of  the  legislation  under  review,  they  afford  interesting  evidence 
of  the  methods  by  which  constitutional  limitations  are  actually 
interpreted  and  applied. 

The  Kansas  statute  deprived  employers  of  a liberty  which 
they  were  allowed  by  common  law.  But  the  Constitution  does 
not  unqualifiedly  forbid  the  taking  of  liberty.  It  forbids  it  only 
when  the  taking  is  without  due  process  of  law.  And  the  mean- 
ing of  due  process  is  not  hinted  at.  It  has  been  left  for  the 
courts  to  work  out.  In  so  far  as  the  clause  has  become  a 
criterion  of  the  validity  of  legislative  objects,  the  issue  is  always 
what  constitutes  an  adequate  justification  for  the  taking  in 
question.  It  is  not  logic  nor  the  language  of  the  Constitution 
which  declares  that  the  promotion  of  the  liberty  of  the  laborer 
to  be  a member  of  a union  is  not  a legitimate  legislative  object. 
It  is  a judgment,  conscious  or  unconscious,  on  a question  of 
policy.  The  issue  in  the  Coppage  case  was  one  of  policy,  and 
all  the  competing  interpretations  of  the  terms  “ liberty  ” and 
“ equality  ” cannot  disguise  the  fact. 

In  deciding  constitutional  questions  which  turn  on  issues  of 
policy,  courts  are  under  a recognized  duty  to  exclude,  so  far  as 
is  humanly  possible,  their  personal  preferences  and  aversions, 
and  to  sustain  a statute  unless  they  find  it  clearly  condemned 
by  the  Constitution.  It  is  idle  to  say  that  courts  never  substi- 
tute their  views  of  policy  for  those  of  the  legislature,  for  min- 
orities have  too  often  charged  majorities  with  such  substitution. 
But  it  is  to  be  assumed  that  such  majorities  firmly  believe  their 
views  of  policy  embedded  in  the  Constitution  and  drawn  there- 
from. The  assumption  is  made  easier  by  the  fact  that  not  a 
few  of  us  identify  our  ideas  of  what  is  good  and  fair  with  some- 
thing greater  than  ourselves.  The  identification  is  usually  in- 
capable of  rigorous  proof.  And  so  it  is  with  the  determination 
of  many  constitutional  questions  by  the  Supreme  Court.  The 
instrument  appealed  to  for  an  answer  to  the  particular  question 
is  silent  thereon.  The  policy  which  the  judges  refer  to  the 
Constitution  is  connected  therewith  only  by  inference  or  con- 


No.  3] 


COLLECTIVE  BARGAINING 


413 


jecture.  And  from  the  processes  of  judicial  inference  it  is  often 
difficult  for  the  judge  to  exclude  his  individual  predilections. 

The  inadequacy  of  the  reasoning  in  many  constitutional 
opinions,  to  which  Mr.  Justice  Holmes  refers,  drives  those  who 
seek  to  understand  the  actual  working  of  our  institutions  of 
government  to  look  beyond  that  reasoning.  The  explanation 
of  the  decisions  not  infrequently  depends  in  part  upon  the 
social  philosophy  of  the  judges,  and  in  part  upon  their  psy- 
chology. Some  judges  succeed  fairly  easily  in  disregarding 
their  personal  views  of  policy  and  in  sustaining  statutes  for 
which  as  legislators  they  would  not  have  voted.  Others  find 
the  task  more  difficult,  possibly  because  their  predilections  are 
stronger,  possibly  because  they  are  less  conscious  of  the  con- 
siderations that  press  to  play  a part  in  their  decisions.  Diffi- 
cult as  it  is  to  tell  just  what  weight  these  factors  have  in  the 
development  of  our  constitutional  law,  it  is  impossible  to  ex- 
clude them  entirely.  We  know  pretty  clearly  the  contrast  be- 
tween Marshall  and  Taney.  On  some  important  questions  it  is 
not  difficult  to  prophesy  accurately  in  advance  how  the  last 
three  judges  appointed  to  the  bench  will  align  themselves. 
With  others  the  task  is  more  difficult.  But  the  fact  that  con- 
siderations which  may  influence  decisions  elude  discovery  does 
not  negative  their  presence  or  their  power.  Whenever  judicial 
opinions  must  be  adjudged  logically  bankrupt,  and  the  bank- 
ruptcy is  recognized  by  dissenting  colleagues,  we  may  feel 
insecure  in  dismissing  as  unimportant  the  relation  between  the 
social  outlook  of  legislators  and  the  social  outlook  of  judges. 

Ill 

The  majority  opinions  in  the  Adair  case  and  the  Coppage 
case  set  forth  clear  and  definite  ideas  of  liberty  and  of  equality. 
It  is  of  the  essence  of  the  liberty  of  employers  that  they  be 
free  to  accept  or  reject  employes  for  any  reason  they  please. 
It  is  of  the  essence  of  the  liberty  of  employes  that  they  be  free 
to  join  unions  or  to  keep  aloof  from  them.  Equal  freedom 
for  employers  and  for  employes  is  the  watchword  of  the 
opinions.  This  freedom,  however,  is  not  freedom  from  eco- 
nomic pressure.  It  is  freedom  from  legal  restraint.  Unions 


414 


POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 


are  lawful  organizations,  like  churches,  political  parties  and  the 
national  guard.  But  they  are  not  entitled  to  the  aid  of  the  law 
in  their  efforts  to  increase  their  numbers.  They  must  make 
their  own  way.  But  this  they  must  be  free  to  do,  so  far  as  the 
law  is  concerned,  unless  they  adopt  obnoxious  methods. 
Leaving  aside  the  question  of  methods,  equality  of  legal  right 
between  employers  and  employed  means  the  non-interference 
of  the  law  in  their  struggles  over  collective  bargaining.  And 
this  principle  of  equality  of  non-interference  is  so  sacred  that 
legislation  cannot  trespass  upon  it  without  running  afoul  of 
the  restrictions  set  by  due-process. 

From  these  views  of  policy  which  permeate  the  majority 
opinions  in  the  two  cases  thus  far  considered,  we  turn  to  the 
case  of  Hitchman  Coal  and  Coke  Company  v.  Mitchell.1  The 
complainant  ran  a closed  non-union  mine.  Each  employe  was 
engaged  under  circumstances  which  the  majority  opinion  states 
as  follows : 

Mr.  Pickett,  the  mine  superintendent,  had  charge  of  employing  the 
men,  then  and  afterwards,  and  to  each  one  who  applied  for  employ- 
ment he  explained  the  conditions,  which  were  that  while  the  company 
paid  the  wages  demanded  by  the  union  and  as  much  as  anybody  else, 
the  mine  was  run  non-union  and  would  continue  so  to  run  ; that  the 
company  would  not  recognize  the  United  Mine  Workers  of  America ; 
that  if  any  man  wanted  to  become  a member  of  that  union  he  was  at 
liberty  to  do  so ; but  he  could  not  be  a member  of  it  and  remain  in  the 
employ  of  the  Hitchman  Company  ; that  if  he  worked  for  the  company 
he  would  have  to  work  as  a non-union  man.  To  this  each  man  em- 
ployed gave  his  assent,  understanding  that  while  he  worked  for  the 
company  he  must  keep  out  of  the  union. 

While  this  arrangement  was  in  force,  officers  of  the  U.  M. 
W.  A.  visited  the  employes  and  solicited  them  to  agree  to  join 
the  union  and  to  keep  secret  the  fact  of  their  so  agreeing,  until 
such  time  as  enough  had  agreed  so  that  the  officers  of  the 
union  were  ready  to  have  the  employer  informed.  Against 
these  acts  of  solicitation  an  injunction  was  granted  by  the  di- 
strict court.  After  being  reversed  by  the  court  of  appeals,  the 


(1917)  245  U S.  232. 


No.  3] 


COLLECTIVE  BARGAINING 


415 


decree  of  the  district  court  was  sustained  by  the  Supreme 
Court,1  with  the  exception  of  that  part  which  restrained  picket- 
ing and  acts  of  violence.  The  exception  was  due  to  the  fact 
that  neither  of  these  forms  of  interference  had  been  attempted. 

The  injunction  did  not  specifically  forbid  the  defendants  to 
persuade  employes  to  promise  to  join  the  union  and  to  keep 
the  promise  a secret.  One  important  clause  enjoined  the  de- 
fendants from  attempting  “ to  bring  about  the  breaking  by 
plaintiff’s  employes  ...  of  their  contracts  of  service,  known 
to  the  defendants  to  exist,  and  especially  from  . . . enticing 
such  employes  ...  to  leave  plaintiff’s  service  without  plain- 
tiff’s consent.”  This  is  a strange  conjunction.  The  employes 
could  break  their  contracts  only  by  not  leaving  plaintiff’s  em- 
ploy after  affiliating  with  the  union.  If  they  joined,  they  were 
to  depart,  not  only  with  plaintiff’s  consent,  but  by  its  express 
requirement.  They  could  not  both  break  their  contracts  and 
leave  without  the  plaintiff’s  consent.2 

In  so  far  as  the  injunction  relates  to  enticing  employes  to 
break  their  contracts,  it  was  not  justified  by  the  evidence  unless 
the  employes  had  agreed  in  form  or  in  substance  not  to  give 
secret  promises  to  join  the  union.  All  that  they  had  agreed  to 
explicitly  was  to  keep  out  of  the  union  while  they  worked  for 
the  company.  Mr.  Justice  Brandeis  says  for  the  minority: 

Until  an  employe  actually  joined  the  union  he  was  not,  under  the 
contract,  called  upon  to  leave  plaintiff’s  employ.  There  consequently. 

1 The  bill  was  filed  October  24,  1907  and  a temporary  injunction  granted.  This 
was  made  final  on  January  18,  1913.  The  decree  of  the  district  court  was  reversed 
by  the  circuit  court  of  appeals  on  June  1,  1914.  A writ  of  certiorari  was  allowed 
by  the  Supreme  Court,  where  the  case  was  argued  in  March,  1916,  reargued  in 
December  of  that  year,  and  decided  a year  later  on  December  10,  1917. 

2 This  is  plain,  not  only  from  the  evidence  as  to  the  understanding  at  the  time  of 
hiring,  but  also  from  what  actually  happened  at  the  Glendale  mine,  a concern  owned 
by  the  same  stockholders  as  the  Hitchman  and  managed  by  Pickett,  the  superin- 
tendent also  of  the  Hitchman.  To  quote  from  the  majority  opinion:  “ Pickett,  the 
mine  superintendent,  had  learned  of  only  five  men  at  the  Glendale  who  were  in- 
clined to  join  Hughes’  movement;  but  when  these  were  asked  to  remain  outside  of 
the  mine  for  a talk,  fifteen  other  men  waited  with  them,  and  upon  being  reminded 
that  while  the  company  would  not  try  to  prevent  them  from  becoming  members  of 
the  union,  they  could  not  be  members  and  at  the  same  time  work  ior  the  Glendale 
Company,  they  all  accepted  this  as  equivalent  to  a notice  of  discharge.” 


4i6 


POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 


would  be  no  breach  of  contract  until  the  employe  both  joined  the 
union  and  failed  to  withdraw  from  plaintiff’s  employ.  There  was  no 
evidence  that  any  employe  was  persuaded  to  do  that  or  that  such  a 
course  was  contemplated. 

The  majority  do  not  seem  to  question  the  interpretation  put 
upon  the  contract  by  the  minority.  But  they  insist  that,  as 
thus  interpreted,  it  had  been  broken  at  defendants’  solicitation. 
“ In  a court  of  equity  ...  to  induce  men  to  agree  to  join  is 
but  a mode  of  inducing  them  to  join.”  Those  who  agreed  to 
join  “ were  for  all  practical  purposes,  and  therefore  in  the  sight 
of  equity,  already  members  of  the  union,  and  it  needed  no 
formal  ritual  or  taking  of  an  oath  to  constitute  them  such.” 
Thus  a verbal  understanding  between  the  superintendent  and 
each  employe  that  “ if  a man  wanted  to  become  a member  of 
that  union  he  was  at  liberty  to  do  so,  but  he  could  not  be  a 
member  of  it  and  remain  in  the  employ  of  the  Hitchman  Com- 
pany ” is  broken  when  an  employe  gives  to  a stranger  a legally 
unenforceable  promise  to  join  the  union. 

It  may  be  doubted  whether  any  such  interpretation  would 
have  been  given  to  the  contract  had  the  question  of  its  mean- 
ing arisen  in  a dispute  which  involved  only  a single  employe. 
What  the  plaintiff  desired  was  to  prevent  its  men  from  acting 
in  concert.  It  had  stipulated  against  one  method  of  acting  in 
concert,  but  had  failed  to  cover  all  the  possibilities.  It  is 
saved  from  its  oversight  by  the  decision  of  the  majority  as  to 
what  constituted  a breach.  But  the  decision  on  this  point,  if 
unwarranted,  is  material  only  to  the  particular  litigation.  The 
contract  which  the  majority  inferred  for  the  plaintiff  may  be 
expressly  made  by  other  employers.  They  will  then  be  pro- 
tected by  the  Supreme  Court  against  the  kind  of  interference 
with  their  enjoyment  of  those  contracts  which  the  defendants 
in  the  Hitchman  case  ventured  upon.  We  are  more  interested 
in  the  rule  of  law  for  which  the  Hitchman  case  stands  than  in 
the  question  whether  it  was  correctly  applied  to  the  particular 
state  of  facts  before  the  court. 

In  order  to  know  what  this  rule  of  law  is,  we  must  examine 
more  fully  the  enterprise  of  the  defendants.  They  were  seek- 


No.  3] 


COLLECTIVE  BARGAINING 


417 


in g not  only  to  get  plaintiff’s  employes  to  join  their  union,  but 
also  to  unionize  the  plaintiff’s  mine.  This  is  not  contested  by 
the  minority.  What  is  meant  by  “unionizing  the  mine”  is 
thus  set  forth  in  the  dissenting  opinion  of  Mr.  Justice  Brandeis: 

The  operator  by  the  union  agreement  binds  himself  : ( 1 ) to  employ 
only  members  of  the  union ; ( 2 ) to  negotiate  with  union  officers  in- 
stead of  employes  individually  the  scale  of  wages  and  the  hours  of 
work;  (3)  to  treat  with  the  duly  constituted  representatives  of  the 
union  to  settle  disputes  concerning  the  discharge  of  men  and  other 
controversies  arising  out  of  the  employment. 

The  demand  for  such  an  agreement  was  to  be  made  as  soon  as 
enough  of  plaintiff’s  employes  had  agreed  to  join  the  union  to 
make  it  likely  that  the  demand  would  meet  with  success.  For 
such  success,  collective  action  was  important.  To  secure  col- 
lective action,  defendants  sought  to  conceal  from  plaintiff  the 
number  and  names  of  the  employes  who  indicated  a willingness 
to  join  with  them,  until  they  had  won  over  enough  men  to 
“ crack  off.” 

This  element  of  secrecy  is  made  so  much  of  in  the  opinion 
of  the  majority  of  the  court,  that  a lawyer-like  attitude  towards 
the  decision  cannot  regard  it  as  a precedent  on  any  situation 
where  the  element  of  secrecy  is  lacking.  It  was  the  conceal- 
ment of  the  promise  to  join  the  union  that  made  it  possible  for 
the  majority  to  insist  that  the  defendants  were  inducing  the 
employes  to  break  their  contracts  by  continuing  to  work  after 
they  were  really,  though  not  formally,  members  of  the  union. 
And  the  concealment  is  also  regarded  as  negativing  a possible 
justification  for  the  acts  of  the  defendants.  Mr.  Justice  Pitney 
refers  to  it  as  follows : 

There  is  no  reason  to  doubt  that  if  defendants  had  been  actuated  by  a 
genuine  desire  to  increase  the  membership  of  the  union  without  un- 
necessary injury  to  the  known  rights  of  the  plaintiff,  they  would  have 
permitted  their  proselytes  to  withdraw  from  plaintiff’s  employ  when  and 
as  they  became  affiliated  with  the  union — as  their  contract  of  employ- 
ment required  them  to  do — and  that  in  this  event  plaintiff  would  have 
been  able  to  secure  an  adequate  supply  of  non-union  men  to  take  theii 
places.  It  was  with  knowledge  of  this,  and  because  of  it,  that  defend- 


POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 


418 

ants,  through  Hughes  as  their  agent,  caused  the  new  members  to 
remain  at  work  in  plaintiff’s  mine  until  a sufficient  number  of  men 
should  be  persuaded  to  join  so  as  to  bring  about  a strike  and  render  it 
difficult  if  not  practically  impossible  for  plaintiff  to  continue  to  exercise 
its  undoubted  legal  and  constitutional  right  to  run  its  mine  “ non- 
union.” 

It  was  one  thing  for  plaintiff  to  find,  from  time  to  time,  compara- 
tively small  numbers  of  men  to  take  vacant  places  in  a going  mine, 
another  and  a much  more  difficult  thing  to  find  a complete  gang  of 
new  men  to  start  up  a mine  shut  down  by  a strike,  when  there  might 
be  reasonable  apprehension  of  violence  at  the  hands  of  the  strikers 
and  their  sympathizers. 

Mr.  Justice  Pitney  here  gives  countenance  to  the  inference 
that  he  would  have  deemed  it  proper  for  the  defendants  to  ask 
plaintiff’s  employes  one  by  one  to  join,  or  to  agree  to  join,  the 
union,  and  then  immediately  to  notify  plaintiff  and  quit  work, 
as  their  contracts  bound  them  to  do.  This  would  not  involve 
a strike,  but  merely  the  ending  of  the  employment  of  the  men 
one  by  one  at  the  compulsion  of  the  employer.  The  issue  of 
the  struggle  would  then  depend  upon  the  rapidity  with  which 
individuals  could  be  secured  for  the  union  and  the  rapidity 
with  which  the  employer  could  fill  their  places.  But  the  situa- 
tion in  the  case  at  bar  was  different.  There  was  an  intention 
to  bring  about  a strike,  so  called,1  even  if  plaintiff  should  desire 

1 Mr.  Justice  Brandeis  also  speaks  of  the  intention  to  have  the  men  “join  the 
union  together  and  strike — unless  plaintiff  consented  to  unionize  the  mine.  ” But 
the  company,  according  to  its  professions,  was  to  insist  that  the  men  leave  if  they 
joined  the  union.  On  the  case  as  presented  by  the  plaintiff  no  strike  would  be 
necessary,  or  possible.  The  original  employment  at  will  would  be  ended  by  its  own 
terms.  The  status  quo  ante  would  then  be  resumed.  There  would  be  no  subsisting 
contractual  relation  between  the  employer  and  the  members  of  the  union.  The  issue 
would  then  relate  to  what  kind  of  a new  bargain  would  evolve  out  of  the  exercise  of 
the  respective  liberties  of  employer  and  men.  There  might  be  a collective  refusal  on 
the  part  of  the  men  to  enter  into  a new  agreement  which  did  not  include  unionizing 
the  mine.  In  practical  effect  this  would  not  differ  from  a collective  abandonment 
of  employment  against  the  wishes  of  the  employer.  But  the  word  “strike”  has  a 
false  color  when  used  in  this  connection.  The  plaintiff  concedes  that  the  men  are 
free  to  join  the  union  at  any  time,  but  insists  that,  if  they  do,  they  must  quit.  If 
after  that  there  is  a deadlock,  it  is  quite  as  fair  to  call  the  situation  a lockout  as  to 
call  it  a strike.  To  call  it  a strike  seems  inconsistent  with  plaintiff’s  professed  con- 
ception of  the  arrangement  originally  entered  into. 


No.  3] 


COLLECTIVE  BARGAINING 


419 


to  retain  the  men  who  joined  the  union.  There  was  what  the 
majority  regarded  as  an  enticement  to  a breach  of  contract. 
It  was  with  such  a situation  that  the  court  found  it  had  to  deal. 
To  that  situation  its  opinion  and  its  judgment  should  be  con- 
fined. This  is  not  only  required  by  sound  lawyership  but  is 
also  supported  by  a paragraph  in  which  Mr.  Justice  Pitney 
sums  up  the  conclusions  reached : 

Upon  all  the  facts,  we  are  constrained  to  hold  that  the  purpose  enter- 
tained by  the  defendants  to  bring  about  a strike  at  plaintiff’s  mine  in 
order  to  compel  plaintiff,  through  fear  of  financial  loss,  to  consent  to 
the  unionization  of  its  mine  as  the  lesser  evil,  was  an  unlawful  purpose, 
and  that  the  methods  resorted  to  by  Hughes — the  inducing  of  em- 
ployes to  unite  with  the  union  in  an  effort  to  subvert  the  system  of  em- 
ployment at  the  mine  by  concerted  breaches  of  the  contracts  of  employ- 
ment known  to  be  in  force  there,  not  to  mention  misrepresentation, 
deceptive  statements,  and  threats  of  pecuniary  loss  communicated  by 
Hughes  to  the  men — were  unlawful  and  malicious  methods,  and  not 
to  be  justified  as  a fair  exercise  of  the  right  to  increase  the  member- 
ship of  the  union. 

The  decision  is  thus  made  dependent  “ upon  all  the  facts,” 
including  the  threat  of  a strike  and  the  enticement  to  breaches 
of  contract.  The  majority,  in  the  passage  quoted,  imply  that 
other  acts  of  defendants  might  be  “ a fair  exercise  of  the  right 
to  increase  the  membership  of  the  union.”  Earlier  in  the 
opinion  Mr.  Justice  Pitney  refers  to  “ the  right  of  workingmen 
to  form  unions,  and  to  enlarge  their  membership  by  inviting 
other  workingmen  to  join  them  ” and  says  : “ This  right  is  freely 
conceded,  provided  the  objects  of  the  union  be  proper  and 
legitimate,  which  we  assume  to  be  true,  in  a general  sense,  with 
respect  to  the  union  here  in  question.”  But  then  he  adds : 

The  cardinal  error  of  defendants’  position  lies  in  the  assumption  that 
the  right  is  so  absolute  that  it  may  be  exercised  under  any  circum- 
stances and  without  any  qualification ; whereas  in  truth,  like  other 
rights  that  exist  in  civilized  society,  it  must  always  be  exercised  with 
reasonable  regard  for  the  conflicting  rights  of  others. 

Here  we  have  a recognition  that  the  “ rights  ” of  employers 
and  the  “ rights  ” of  laborers  conflict.  The  successful  exercise 


420 


POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 


of  the  “ right  ” of  members  of  the  union  to  increase  their  num- 
bers will  interfere  pro  tanto  with  the  successful  exercise  of  the 
“ right”  of  employers  to  run  their  mines  non-union.  Yet  both 
rights  exist  and  are  declared  to  be  entitled  to  an  equality  of 
legal  protection.  Plainly,  therefore,  the  majority  give  no  satis- 
factory reason  for  their  interference  with  the  “right”  of  the 
defendants  by  declaring  that  the  defendants  were  interfering 
with  the  “ right”  of  the  plaintiff.  The  defendants  could  exer- 
cise their  right  with  respect  to  plaintiff’s  employes  only  by  inter- 
fering with  the  conflicting  right  of  the  plaintiff.  We  may  then 
dismiss  as  merely  prefatory  the  numerous  statements  of  Mr. 
Justice  Pitney  with  respect  to  the  right  of  the  plaintiff  to  exclude 
union  men  from  its  employ,  and  to  the  interference  with  that 
right  by  the  defendants.  These  statements  have  been  sub- 
jected to  a searching  and  illuminating  analysis  by  Professor 
Walter  W.  Cook.1  By  the  use  of  a somewhat  elaborate  verbal 
technique  which  gives  different  terms  to  the  different  varieties 
of  legal  rights,  Mr.  Cook  shows  how  Mr.  Justice  Pitney  uses 
“ right  ” now  in  one  sense  and  now  in  another,  thus  uncon- 
sciously asserting  a new  proposition  and  one  as  yet  unproved, 
under  the  form  of  merely  reiterating  something  firmly  estab- 
lished. But  in  spite  of  these  lapses  in  the  argumentation,  the 
majority  opinion,  by  entering  upon  the  question  whether  de- 
fendants’ interference  with  plaintiff’s  interests  was  justified, 
reaches  the  nub  of  the  controversy. 

The  minority  concede  that  the  defendant  must  show  justifi- 
cation. They  “ were  within  their  rights,”  says  Mr.  Justice 
Brandeis,  “ if,  and  only  if,  their  interference  with  the  relation  of 
plaintiff  to  its  employes  was  for  justifiable  cause.”  And  the 
justification  is  then  stated  as  follows: 

The  purpose  of  interfering  was  confessedly  in  order  to  strengthen  the 
union,  in  the  belief  that  thereby  the  condition  of  workmen  engaged  in 
mining  would  be  improved ; the  bargaining  power  of  the  individual 
workingman  was  to  be  strengthened  by  collective  bargaining ; and  col- 
lective bargaining  was  to  be  insured  by  obtaining  the  union  agreement. 
It  should  not,  at  this  day,  be  doubted  that  to  induce  workingmen  to 

1 “Privileges  of  Labor  Unions  in  the  Struggle  for  Life,”  27  Yale  Law  Journal  779 
(April,  1918). 


No.  3] 


COLLECTIVE  BARGAINING 


421 


leave  or  not  to  enter  an  employment  in  order  to  advance  such  a pur- 
pose, is  justifiable  when  the  workmen  are  not  bound  by  contract  to 
remain  in  such  employment. 

But  the  majority  insist  that  the  end  aimed  at  was  not  a justifica- 
tion for  the  interference.  The  defendants’  activities,  says  Mr. 
Justice  Pitney,  “ cannot  be  treated  as  a bona  fide  effort  to 
enlarge  the  membership  of  the  union.”  The  reason  given  is  in 
substance  that  it  was  an  effort  to  do  something  more  than  to 
enlarge  the  union.  It  was  an  attempt  to  unionize  the  mine 
after  the  union  was  enlarged.  But  Mr.  Justice  Pitney  says  that 
“ there  is  no  evidence  to  show,  nor  can  it  be  inferred,  that  de- 
fendants intended  or  desired  to  have  the  men  at  the  mines  join 
the  union,  unless  they  could  organize  the  mines.”  Of  course 
if  they  gained  this  end  they  would  enlarge  the  union.  And  the 
enlargement  of  the  union  is  always  sought  for  some  more  con- 
crete advantage  than  mere  growth  in  numbers.  The  reason 
why  there  is  any  truth  to  the  statement  that  the  defendants  did 
not  wish  plaintiff’s  employes  to  join  the  union  unless  the  mine 
could  be  thereby  unionized  is  that  such  unionization  was  deemed 
necessary  in  order  to  safeguard  the  interests  of  the  men  after 
they  were  in  the  union  and  to  make  it  possible  for  them  to 
remain  in  the  union. 

But  Mr.  Justice  Pitney’s  analysis  of  the  defendants’  purposes, 
however  faulty,  indicates  where  he  draws  the  line  as  to  what 
constitutes  an  adequate  justification.  Union  organizers  can  get 
men  to  join  the  union,  if  they  do  not  thereby  interfere  with  the 
employer’s  “ undoubted  legal  and  constitutional  right  to  run  its 
mine  ‘ non-union.’  ” They  may  increase  the  union  if  they  do 
it  in  such  a way  that  an  employer  can  readily  continue  to  get 
non-union  laborers.  But  they  must  not  attempt  to  “ alienate  a 
sufficient  number  of  the  men  to  shut  down  the  mine,  to  the  end 
that  the  fear  of  losses  through  stoppage  of  operations  might 
coerce  plaintiff  into  4 recognizing  the  union  ’ at  the  cost  of  its 
own  independence.”  The  purpose  of  organizing  the  mine  is  no 
justification.  Where  “ unionizing  the  miners  is  but  a step  in 
the  process  of  unionizing  the  mine,”  the  plaintiff  “ is  as  much 
entitled  to  prevent  the  first  step  as  the  second,  so  far  as  its  own 
employes  are  concerned,  and  to  be  protected  against  irrepara- 


POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 


422 

ble  injury  resulting  from  either.”  And  the  purpose  of  secur- 
ing collective  bargaining  is  not  a justification  for  disturbing  an 
employer,  unless  the  employer  is  willing  to  bargain  that  way. 
“ Whatever  may  be  the  advantages  of  ‘ collective  bargaining/ 
it  is  not  bargaining  at  all,  in  any  just  sense,  unless  it  is  voluntary 
on  both  sides.” 

This  irenic  conception  of  the  way  buyers  and  sellers  should 
bargain  bespeaks  a noble  ideal,  but  one  not  yet  fully  realized  in 
the  coal  regions.  Collective  bargaining  is  seldom,  if  ever, 
brought  about  because  employers  desire  it  above  all  other 
forms.  It  is  brought  about  because  employers  prefer  it  to 
making  no  bargains  at  all.  It  is  interesting  that  it  is  Mr. 
Justice  Pitney  who  refers  to  the  acts  of  the  defendants  as  the 
“ employment  of  coercive  measures  to  secure  a closed  union 
shop  through  a collective  agreement  with  the  union.”  For  it 
was  Mr.  Justice  Pitney  who  reminded  us  in  the  Coppage  case 
that  it  was  not  “ coercion  ” to  propose  certain  terms  of  employ- 
ment which  one  has  the  right  to  propose.  Now  it  is  the  min- 
ority who  have  to  tell  us  that  economic  pressure  is  not  coercion 
in  a legal  sense.  As  Mr.  Justice  Brandeis  puts  it: 

The  employer  is  free  either  to  accept  the  agreement  or  the  disadvant- 
age. Indeed,  the  plaintiff’s  whole  case  is  rested  upon  agreements 
secured  under  similar  pressure  of  economic  necessity  or  disadvantage. 
If  it  is  coercion  to  threaten  to  strike  unless  plaintiff  consents  to  a 
closed  union  shop,  it  is  coercion  also  to  threaten  not  to  give  one  em- 
ployment unless  the  applicant  will  consent  to  a closed  non-union  shop. 
The  employer  may  sign  the  union  agreement  for  fear  that  labor  may 
not  be  otherwise  obtainable ; the  workman  may  sign  the  individual 
agreement,  for  fear  that  employment  may  not  be  otherwise  obtainable. 
But  such  fear  does  not  imply  coercion  in  a legal  sense. 

But  Mr.  Justice  Pitney  takes  a more  idyllic  view  of  the  orig- 
inal non-union  agreement  at  the  Hitchman.  He  speaks  of  the 
fact  that  the  defendants  had  plain  notice  “ that  the  observance 
of  this  agreement  was  of  great  importance  and  value  both  to 
the  plaintiff  and  to  its  men  who  had  voluntarily  made  the 
agreement  and  desired  to  continue  working  under  it.”  And 
again  he  says  that  the  plaintiff  “ established  the  mine  on  a non- 


No.  3] 


COLLECTIVE  BARGAINING 


42  3 


union  basis,  with  the  unanimous  approval  of  its  employes — in 
fact  upon  their  suggestion — and  under  a mutual  agreement  as- 
sented to  by  every  employe,  that  plaintiff  would  continue  to 
run  its  mine  non-union.  . . This  “ suggestion  ” of  the  em- 
ployes is  earlier  detailed  by  Mr.  Justice  Pitney  as  follows: 

About  the  first  of  June  a self-appointed  committee  of  employes 
called  upon  plaintiff’s  president,  stated  in  substance  that  they  could 
not  remain  longer  on  strike  because  they  were  not  receiving  benefits 
from  the  union,  and  asked  upon  what  terms  they  could  return  to  work. 
They  were  told  that  they  could  come  back,  but  not  as  members  of  the 
United  Mine  Workers  of  America ; that  thenceforward  the  mine  would 
be  run  on  a non-union  basis,  and  the  company  would  deal  with  each 
man  individually.  They  assented  to  this  and  returned  to  work  on  a 
non-union  basis. 

A further  side-light  is  thrown  on  the  situation  by  the  account 
in  the  majority  opinion  of  the  activities  of  the  union  organizer : 
“ He  prophesied,  in  such  a way  that  ignorant,  foreign-born 
miners,  such  as  he  was  addressing,  naturally  might  believe  that 
he  was  speaking  with  knowledge.  . . .”  Ignorant  and  gullible 
were  the  men  who  voluntarily  made  the  non-union  agreement 
with  their  employer  and  desired  to  continue  working  under  it. 

Closely  connected  with  Mr.  Justice  Pitney’s  change  of  view 
as  to  what  constitutes  “ coercion  ” is  his  shift  with  respect  to 
“ independence.”  In  the  Hitchman  case  he  speaks  of  the  de- 
fendants’ action  as  being  directed  “ to  the  end  that  the  fear  of 
losses  through  stoppage  of  operations  might  coerce  plaintiff  into 
* recognizing  the  union’  at  the  cost  of  its  own  independence.” 
But  in  the  Coppage  case  he  did  not  recognize  any  loss  of  inde- 
pendence by  the  laborers  who  had  to  agree  to  refrain  from 
union  affiliations  in  order  to  get  work.  The  employe  was  said 
to  be  “ free  to  decline  employment  on  those  terms,  just  as  the 
employer  may  decline  to  offer  employment  on  any  other;  for 
‘ it  takes  two  to  make  a bargain.’  ” As  to  loss  of  independence 
after  making  the  bargain,  he  said  : “ Freedom  of  contract,  from 
the  very  nature  of  the  thing,  can  be  enjoyed  only  by  being  ex- 
ercised ; and  each  particular  exercise  of  it  involves  making  an 
engagement  which,  if  fulfilled,  prevents  for  the  time  any  incon- 


424 


POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 


sistent  course  of  conduct.”  In  the  Hitchman  case,  it  is  not  to 
Mr.  Justice  Pitney,  but  to  Mr.  Justice  Brandeis,  that  we  must 
look  for  this  point  of  view.  In  the  dissenting  opinion  we  find 
the  following: 

It  is  urged  that  a union  agreement  curtails  the  liberty  of  the  operator. 
Every  agreement  curtails  the  liberty  of  those  who  enter  into  it.  The 
test  of  legality  is  not  whether  an  agreement  curtails  liberty , but  whether 
the  parties  have  agreed  upon  something  which  the  law  prohibits  or 
declares  otherwise  to  be  inconsistent  with  the  public  welfare. 

Then  follows  the  enumeration  of  the  details  of  the  union  agree- 
ment quoted  on  page  417  supra , and  the  comment: 

These  are  the  chief  features  of  a “ unionizing  ’ ’ by  which  the  employ- 
er’s liberty  is  curtailed.  Each  of  them  is  legal.  To  obtain  any  of 
them  or  all  of  them  men  may  lawfully  strive  and  even  strike.  And,  if 
the  union  may  legally  strike  to  obtain  each  of  the  things  for  which  the 
agreement  provides,  why  may  it  not  strike  or  use  equivalent  economic 
pressure  to  secure  an  agreement  to  provide  them  ? 

To  this  Mr.  Justice  Pitney  gives  no  answer  except  to  reiterate 
the  “ legal  right”  of  the  plaintiff  to  run  its  mine  non-union,  to 
make  agreements  to  that  end  with  its  employes,  and  “to  be 
protected  in  the  enjoyment  of  the  resulting  status,  as  in  any 
other  legal  right.”  This  status  is  deemed  so  sacred  that  the 
purpose  of  the  union  leaders  to  interfere  with  it  is  in  itself  un- 
lawful. Unions  may  strive  to  increase  their  numbers,  but  they 
must  not  in  so  doing  strive  to  unionize  any  mine  in  which  em- 
ployes have  agreed  to  quit  if  they  join  the  union.  After  quot- 
ing a familiar  statement  from  the  Mogul  Steamship  Case  1 as  to 
the  unlawfulness  of  inflicting  intentional  damage  without  just 
cause  or  excuse,  Mr.  Justice  Pitney  adds: 

And  the  intentional  infliction  of  such  damage  upon  another,  without 
justification  or  excuse,  is  malicious  in  law.  . . . And  we  cannot  deem 
the  proffered  excuse  to  be  a “ just  cause  or  excuse,”  where  it  is  based, 
as  in  this  case,  upon  an  assertion  of  conflicting  rights  that  are  sought 
to  be  attained  by  unfair  methods,  and  for  the  very  purpose  of  interfer- 
ing with  plaintiff’s  rights,  of  which  defendants  have  full  notice. 


1 23  Q B.  Div.  613. 


No.  3] 


COLLECTIVE  BARGAINING 


425 


Leaving  aside  the  question  of  methods,1  this  is  to  say  that 
plaintiffs  purpose  is  its  right,  and  therefore  defendants’  contrary 
purpose  cannot  be  their  right. 

Defendants’  purpose  seems  to  be  regarded  as  illegal,  no 
matter  by  what  methods  it  is  pursued.  Much  of  the  assertion 
in  the  majority  opinion  leads  to  this  inference,  and  the  inference 
is  reinforced  by  one  of  the  clauses  of  the  injunction.  As  para- 
phrased by  Mr.  Justice  Pitney,  it  restrained  defendants  from 
“ knowingly  and  wilfully  enticing  plaintiff’s  employes,  present 
or  future,  to  leave  plaintiff’s  service  on  the  ground  that  plaintiff 
does  not  recognize  the  United  Mine  Workers  of  America  or 
runs  a non-union  mine,  etc.”  In  this  clause  there  is  no  refer- 
ence to  enticing  breaches  of  contract.  So  far  as  the  terms 
above  quoted  disclose,  defendants  would  be  sent  to  jail  if  they 
persuaded  any  of  plaintiff’s  employes  to  join  the  union.  For 
any  one  who  joined  had  to  leave  plaintiff’s  service  because 
plaintiff  ran  a non-union  mine.  Enticing  him  to  join  the  union 
is  enticing  him  to  leave  because  plaintiff  runs  a non-union  mine. 
Such  leaving  would,  it  is  true,  be  by  the  consent  and  the  com- 
pulsion of  the  plaintiff,  but  the  clause  now  under  consideration 
is  not  qualified  by  the  words  “ without  plaintiff’s  consent.” 

JThe  minority  insist  that  the  methods  of  defendants  were  entirely  fair.  The  organ- 
izer had  informal  talks  and  some  quietly  conducted  public  meetings  in  which  he 
pointed  out  that,  though  “the  company  was  then  paying  them  according  to  the 
union  scale,  there  would  be  nothing  to  prevent  a later  reduction  of  wages  unless  the 
men  united.”  He  also  pointed  out  that,  if  the  men  lost  their  present  jobs,  “ mem- 
bership in  the  union  was  requisite  to  obtaining  employment  in  the  union  mines  of  the 
neighboring  states.”  The  majority,  however,  insist  that  he  used  “abusive  lan- 
guage” respecting  the  superintendent  and  two  of  the  miners  who  evidently  were 
opposed  to  the  union,  and  that  he  represented  the  possible  reduction  of  wages  so  that 
the  ignorant  miners  might  naturally  believe  he  was  speaking  with  knowledge.  They 
also  refer  to  a conversation  in  which  he  tepresented  that  Koch,  the  general  manager, 
“ had  nothing  against  having  the  place  organized  again.” 

The  really  important  dispute  as  to  methods  is  whether  they  involved  breach  of 
contract.  The  minority  do  not  make  clear  whether,  if  they  agreed  with  the  view  that 
continuing  work  after  the  secret  agreement  constituted  a breach  of  contract,  they 
would  sanction  the  injunction  on  that  point.  They  concede  that  mere  persuasion  to 
leave  the  employment  requires  justification,  and  declare  that  plaintiff’s  individual  con- 
tracts add  nothing  to  its  rights,  so  long  as  the  employment  is  terminable  at  will. 
They  hold,  however,  that  the  object  of  strengthening  the  union  justified  the  persua- 
sion. They  imply  that  it  would  not  justify  inducing  breach  of  a contract  to  serve  for 
a definite  term.  But  as  to  other  possible  contracts  they  are  silent. 


426  POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 

It  is  probable,  however,  that  Mr.  Justice  Pitney’s  paraphrase 
of  this  clause  of  the  injunction  is  incomplete.  The  reference 
to  it  in  the  minority  opinion  contains  the  qualification  * “ for 
the  purpose  of  unionizing  plaintiff’s  mine  without  plaintiff’s 
consent.”  But  even  this  qualification  would  not  make  licit  an 
“ enticement  ” to  join  the  union  which  was  part  of  a plan  to 
unionize  the  mine.  If  defendants  had  such  a plan,  they  would 
be  restrained  from  asking  plaintiff’s  employes  one  by  one  to 
join  the  union,  even  though  they  joined  openly  and  withdrew 
from  work  at  once  as  the  employer  desired.  If  union  officials 
wish  to  start  a membership  campaign  among  miners  working 
under  a non-union  agreement,  they  must  be  without  any  thought 
of  later  unionizing  the  mine.  For  to  seek  to  unionize  a mine 
run  under  a non-union  agreement  is  to  seek  to  make  it  impos- 
sible for  the  mine-owner  “ to  exercise  his  undoubted  legal  and 
constitutional  right,”  and  for  the  very  purpose  of  making  it 
impossible,  and  therefore  without  just  cause  or  excuse.  For  it 
is  no  justification  that  the  defendants  are  seeking  to  strengthen 
the  union  and  to  secure  collective  bargaining,  since  collective 
bargaining  interferes  with  the  employer’s  right  to  make  indi- 
vidual bargains,  and  “ is  not  bargaining  at  all  in  any  just  sense, 
unless  it  is  voluntary  on  both  sides.”  It  is  “ coercion,”  and  an 
interference  with  the  “ independence  ” of  the  employer. 

Recognized  canons  of  judicial  action  require  us  to  limit  the 
authority  of  the  actual  decision  of  the  Hitchman  case  to  situa- 
tions where  there  is  some  element  of  breach  of  contract  and  a 
threatened  strike.  Parts  of  the  majority  opinion  so  limit  the 
decision.  But  other  parts  and  some  of  the  terms  of  the  injunc- 
tion go  further.  Two  inconsistent  threads  of  thought  run 
through  the  majority  opinion.  One  would  permit  union  officials 
to  secure  members  from  men  working  under  a non-union  agree- 
ment if  each  man  announces  his  new  affiliation  as  soon  as  it 
occurs  and  leaves  the  employment  as  the  contract  under  which 
he  is  working  permits  and  requires.  The  other  would  forbid 
it,  if  there  was  evidence  of  a plan  to  unionize  the  mine. 

If  law,  as  Mr.  Justice  Holmes  says,  is  a prophecy  of  what 
courts  will  do  in  fact,  it  is  more  important  to  know  what  a 
majority  of  the  Supreme  Court  think,  than  what  they  have 


No.  3] 


COLLECTIVE  BARGAINING 


42  7 

technically  decided.  And  it  seems  pretty  clear  that  at  present 
a majority  of  the  Supreme  Court  think  that  labor  unions  must 
take  no  steps  whatever  to  unionize  a non-union  mine,  at  least 
where  its  non-union  character  has  been  protected  by  contracts 
with  the  employes.  In  the  absence  of  such  an  object,  they 
may  take  steps  to  get  union  members  from  a non-union  mine, 
provided  the  employer  is  apprised  of  each  inch  of  their  prog- 
ress. If  their  success  is  sufficiently  rapid,  the  employer  may 
find  himself  in  a position  where  he  prefers  to  ask  the  men 
to  come  back  even  though  they  remain  in  the  union.  Then 
arises  a new  situation  which  the  Hitchman  case  does  not  cover. 
For  it  is  explicitly  stated  in  the  majority  opinion  that  “ the 
case  involves  no  question  of  the  rights  of  employes,”  and 
further  that  the  “ defendants  could  not,  without  agency,  set 
up  any  rights  that  employes  might  have.” 

If  therefore  union  officials  form  their  plan  to  unionize  a mine 
only  after  it  has  ceased  to  be  a closed  non-union  mine  and  has 
become  an  open  one,  it  would  seem  that  they  may  carry  o^t 
their  plan  as  agents  of  the  union  members  among  the  employes. 
But  the  present  majority  of  the  Supreme  Court  is  not  likely  to 
find  such  a situation  occurring  in  the  affairs  of  the  United  Mine 
Workers  of  America.  For  they  will  always  have  the  evidence 
relied  on  in  the  Hitchman  case  which  establishes  from  the  pro- 
ceedings of  their  annual  convention  that  the  U.  M.  W.  A.  mean 
to  unionize  every  mine  they  can.  Every  step  to  secure  mem- 
bers from  non-union  mines  must  therefore  be  part  of  a plan  to 
unionize  the  mine.  Employes  who  wish  to  affiliate  with  the 
U.  M.  W.  A.  must  do  so  entirely  of  their  own  initiative.  But 
even  this  initiative  will  probably  be  checked  by  the  type  of 
non-union  agreement  which  appears  in  Eagle  Glass  and  Manu- 
facturing Company  v.  Rowe,1  decided  the  same  day  as  the 
Hitchman  case.  This  required  each  employe  to  promise  “ that 
if  at  any  time  while  so  employed  he  desired  to  become  con- 
nected with  the  union  he  would  withdraw  from  the  employ  of 
the  company,  and  that  while  in  its  employ  he  would  not  make 
any  effort  amongst  its  employes  to  bring  about  the  unionizing 


1 (1917)  245  U.  S.  276. 


428 


POLITICAL  SCIENCE  QUARTERLY  [Vol.  XXXIII 


of  the  plant  against  the  company’s  wish."  With  such  an  agree- 
ment, the  employes  themselves  would  be  restrained  from  cast- 
ing glances  at  the  union  in  the  desire  to  get  the  mine  unionized. 

Thus  it  appears  that  the  equal  liberty  of  employer  and  em- 
ployed which  is  the  boast  of  the  law  is  a personal  and  individ- 
ual matter.  Each  laborer  when  unemployed  is  as  free  from 
legal  restraint  as  to  what  bargain  he  shall  make  as  is  each  em- 
ployer. After  his  bargain,  the  extent  of  his  freedom  depends 
upon  the  terms  of  the  bargain.  Though  limited,  it  is  self- 
limited. Freedom  has  curtailed  freedom.  But  the  freedom 
curtailed  is  not  that  of  the  individual  contractor  alone.  By  a 
bargain  which  leaves  himself  free  to  leave  the  employment  at 
any  time,  he  binds  others  not  to  persuade  him  to  leave.  For 
he  has  helped  to  create  a status — the  status  of  the  closed  non- 
union shop.  He  may  dissolve  the  status  so  far  as  it  concerns 
him.  But  others  may  not  seek  to  dissolve  the  status  through 
him.  Thus  each  laborer  holds  in  his  own  hands  the  liberty  of 
other  laborers,  which  he  may  bargain  away.  Much  as  they 
may  desire  to  improve  their  position  by  prevailing  upon  all 
laborers  to  act  collectively,  they  may  not  approach  one  who 
has  agreed  to  leave  his  employment  if  he  desires  to  unite  with 
them.  “ The  right  of  workingmen  to  form  unions,  and  to  en- 
large their  membership  by  inviting  other  workingmen  to  join 
them  ’’  is  “ freely  conceded."  But  the  judges  who  concede  it 
hold  that  it  cannot  be  exercised  for  the  purpose  of  changing  a 
closed  non-union  mine  into  a closed  union  mine.  To  the  con- 
tention to  the  contrary,  “ it  is  a sufficient  answer,  in  law,  to 
repeat  that  plaintiff  had  a legal  and  constitutional  right  to 
exclude  union  men  from  its  employ." 

This  is  the  law  of  West  Virginia,  as  declared  by  the  Supreme 
Court  of  the  United  States  in  a case  where  federal  jurisdiction 
obtained  by  reason  of  diversity  of  citizenship.  Mr.  Cook,  in 
the  article  previously  referred  to,  says  that  the  cases  cited  by 
the  Supreme  Court  from  West  Virginia  and  other  jurisdictions 
in  support  of  the  inadequacy  of  defendants’  justification  do  not 
establish  it.  They  support  the  principle  that  justification  is 
necessary  to  excuse  one  who  persuades  employes  to  leave  their 
employer,  but  they  do  not  negative  the  lawfulness  of  the  excuse 


No.  3] 


COLLECTIVE  BARGAINING 


429 


offered  by  the  defendants  in  the  case  at  bar.  Mr.  Justice 
Pitney  negatives  it  only  by  asserting  that  defendants’  purpose 
and  alleged  justification  interferes  with  plaintiff’s  right.  This  is 
conceded,  if  the  term  “ right  ” is  properly  understood.  But  in 
the  same  sense  of  the  term,  the  interference  was  in  the  exercise 
of  a conflicting  right  of  the  defendants.  The  mere  statement 
of  the  conflict  throws  no  light  on  which  should  prevail,  or  what 
adjustment  should  be  made.  That  question  is  plainly  one  of 
policy.  Congress  and  the  legislatures  of  at  least  fourteen  states  1 
have  indicated  their  views  of  policy  by  prohibiting  the  type  of 
agreement  which  was  the  foundation  of  the  plaintiff’s  action  in 
the  Hitchman  case.  This  policy  the  Supreme  Court  reverses, 
not  only  by  insisting  that  the  making  of  such  agreements  cannot 
be  inhibited,  but  by  declaring  that  when  made  for  any  mine  or 
mill  they  end  the  liberty  of  organized  labor  to  seek  to  organize 
that  establishment. 

These  competing  policies  are  undoubtedly  debatable.  It  is 
much  less  clear  that  the  judges  have  satisfactorily  debated  them. 
Much,  if  not  most,  of  the  reasoning  given  in  support  of  the 
decisions  is  abstract  and  artificial.  “ Liberty  ” and  “ equality  ” 
and  “right”  seem  often  to  be  terms  to  conjure  with,  rather 
than  to  enlighten.  We  are  not  likely  to  get  a satisfactory  solu- 
tion of  the  problem  of  collective  bargaining  through  the  juris- 
prudence of  abstract  conceptions.  Indeed  jurisprudence  of  any 
kind  may  play  but  a pigmy  part  in  the  solution,  which  seems 
to  be  conditioned  less  on  the  conclusions  of  judicial  reasoning 
than  on  what  a despised  and  revered  writer  has  called  “ that 
simpler  line  of  expedients  which  the  drift  of  circumstance, 
being  not  possessed  of  a legal  mind,  has  employed  in  the 
sequence  of  institutional  change  hitherto.”  The  three  decisions 
under  review  do  not  seem  greatly  to  have  delayed  the  progress 
of  collective  bargaining.  They  may  soon  be  mainly  of  philo- 
sophical and  antiquarian  interest. 

Thomas  Reed  Powell. 

Columbia  University. 

1 A list  is  given  in  the  margin  of  Mr.  Justice  Day’s  dissenting  opinion  in  the  Cop- 
page  case,  at  page  29. 


